Citation Nr: 1756945 Decision Date: 12/08/17 Archive Date: 12/15/17 DOCKET NO. 12-07 721 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for low HDL levels. 2. Entitlement to service connection for a chronic disorder of the gums. 3. Entitlement to service connection for a bilateral eye disorder, to include glaucoma. 4. Entitlement to service connection for a pinched nerve/nerve damage of the left leg, to include as secondary to a service-connected disability. 5. Entitlement to service connection for right kidney tumors. 6. Entitlement to an initial compensable rating for hypertension (HTN) prior to October 27, 2010. 7. Entitlement to an initial rating in excess of 10 for HTN from October 27, 2010. REPRESENTATION Veteran represented by: North Carolina Division of Veterans Affairs WITNESSES AT HEARING ON APPEAL Veteran and spouse ATTORNEY FOR THE BOARD J. L. Burroughs, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1967 to December 1971. This matter is before the Board of Veterans' Appeals (Board) on appeal of rating decisions of a Regional Office (RO) of the Department of Veterans Affairs (VA). In September 2014, this matter was remanded to afford the Veteran a Board Hearing. A Travel Board Hearing was held before the undersigned in March 2017. A transcript of this hearing is of record. With regard to the claim for increase rating, the Board notes that this issue has been recharacterized to better reflect the desires of the Veteran. Historically, in an October 2010 rating action the RO granted service connection for HTN and rated the disability noncompensably, effective September 27, 2009. The Veteran appealed this denial. Prior to the Veteran perfecting this appeal, in February 2012, the RO increased the Veteran's rating from noncompensable to 10 percent, effective October 27, 2010. The Veteran continued his appeal. AB v. Brown, 6 Vet. App. 35 (1993). Thereafter, in March 2013 correspondence and at his March 2017 Board Hearing, the Veteran requested to limit his appeal. Specifically, he noted satisfaction with his current 10 percent rating, but indicated a desire to continue on with the appeal for an initial compensable rating prior to October 27, 2017. As a result, what remains for consideration is the issue of entitlement to an initial compensable rating for HTN prior to October 27, 2017. This procedural history is reflected on the title page of the decision. The issue of entitlement to service connection for right kidney tumors is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if additional action is required on his part. FINDINGS OF FACT 1. In March 2013 correspondence, and at the March 2017 Board hearing, the Veteran withdrew his appeal with respect to the issues of entitlement service connection for low HDL levels; chronic disorder of the gums; and a bilateral eye disorder, to include glaucoma; and entitlement to an initial rating in excess of 10 percent for HTN from October 27, 2010. 2. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for focal sensory peripheral neuropathy to the left medial thigh, as secondary to service-connected HTN, have been met. 3. For the entire appeal period, the Veteran's HTN required continuous use of medication for control, but was not manifested by a history of diastolic pressure predominantly 100 or more, a systolic pressure predominantly 160 or more, or a diastolic pressure predominantly 100 or more. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal for service connection for low HDL levels; chronic disorder of the gums; and a bilateral eye disorder, to include glaucoma; and entitlement to an initial rating in excess of 10 percent for HTN from October 27, 2010 have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 2. The criteria for service connection for focal sensory peripheral neuropathy of the left medial thigh have been met. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303, 3.310 (2017). 3. The criteria for an initial compensable disability rating for service-connected HTN prior to October 27, 2010, have not been met. 38 U.S.C. § 1155, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. § 3.159, 3.321, 4.31, 4.104, Diagnostic Code 7101 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Withdrawn Claims In March 2013 correspondence to VA, the Veteran withdrew his appeal for service connection for low HDL levels and a bilateral eye disorder, to include glaucoma. Thereafter, on Board hearing in March 2017, he reasserted a desire to withdrawal these claims. In addition, he withdrew his claim for service connection for a chronic disorder of the gums and for entitlement to an initial rating in excess of 10 percent for HTN from October 27, 2010. With regard to the Veteran's oral statements during his hearing, as they have been memorialized in writing in the transcript they satisfy the requirements for the withdrawal of a substantive appeal of the low LDL levels, bilateral eye disorder, to include glaucoma, and gum disorder service connection and HTN increased rating claims. See, e.g., Tomlin v. Brown, 5 Vet. App. 355 (1993). Thus, the Veteran has withdrawn his appeal with respect to these issues, and there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal as to these claims, and they are dismissed. 38 U.S.C. § 7105 (2012). Duties to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board...to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359,1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service Connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. § 1110, 1131 (2012). Service connection may alternatively be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a) (2017). In order to prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Allen, supra. Proximate cause is defined as "that which, in a natural and continuous sequence, unbroken by any efficient intervening cause, produces injury, and without which the result would not have occurred." Forshey v. West, 12 Vet. App. 71, 73-74 (1998) (quoting Black's Law Dictionary 1225 (6th ed.1990)), aff'd sub nom. Forshey v. Principi, 284 F.3d 1335 (Fed. Cir. 2002); Thomas v. Nicholson, 21 Vet. App. 418 (2006) (discussing the Board's treatment of proximate causation), aff'd, 227 F. App'x 895 (Fed. Cir. 2007). The Veteran asserts that his service-connected HTN and diabetes mellitus type II (DM II) medication either in conjunction or individually were the proximate cause of a fall that lead to his current left lower extremity peripheral neuropathy. Specifically, he testified that in April 2010 he fell onto a ladder after feeling extremely dizzy while attempting to stand from a crouched position. See Transcript (T.) page (pg.) 8. Subsequent to the fall, he experienced a burning sensation, numbness, and pain which remain present until this day. Turning to the record, both the first and second elements of Wallin are established. The medical evidence reveals that the Veteran has a diagnosis of focal sensory peripheral neuropathy to the left medial thigh. See January 2014 Hickory CBOC Treatment Medical Records. He is also service connected for HTN and DM II. That said, the remaining pertinent question is whether his service-connected HTN and DM II medication individually, or combined, were the proximate cause of his fall. With respect to nexus evidence, the Veteran has submitted opinions from various treatment providers. In relevant part, in October 2011, his orthopedic surgeon Dr. T. P., M. D. clarified that his current lower extremity symptomatology was the direct result of his April 2010 fall. As rationale, Dr. P. essentially indicated that the trajectory of the Veteran's fall onto the left mid-thigh correlated with the distribution of his lateral femoral cutaneous nerve. Importantly, subsequent to the fall he experienced symptomatology of numbness and pain adjoining the lateral femoral cutaneous nerve. In this regard, as such symptomatology was not present before the fall, it was likely the result of the fall. In February 2017, J. K., P.A.-C., the Veteran's primary care provider opined that his blood pressure medication was more likely than not the cause of his fall. As rationale, J. K. noted that just prior to his fall the Veteran was prescribed four blood pressure medications. In this regard, J. K. indicated that the number of medications prescribed to the Veteran constituted HTN polypharmacy, which is a known contributor to falls. Correspondingly, in July 2017, S. C., R. N., the Veteran's occasional treatment provider concurred with J. K.'s findings. As rationale, S. C. explained that the Veteran was prescribed six medications in total for his HTN and DM II. These medications were each associated with a risk of causing falls in patients. Given the Veteran's combined use of these medications, his risk of a fall would have been assuredly greater. These collective medical opinions are considered adequate and highly probative because the clinicians discussed the relevant evidence, considered the contentions of the Veteran, and provided a thorough supporting rationale for the conclusions reached. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Further, the Board considers these opinions to be particularly relevant as they were prepared by the Veteran's primary care providers who have intimate knowledge of his disability history. Therefore, the Board finds a sufficient basis for granting service connection. In sum, the record contains a positive opinion which correlates the Veteran's currently diagnosed disability to a fall. Treatment providers have opined that the Veteran's service-connected HTN and/or DM II medications were the proximate cause of this fall. The record is silent as to sufficiently probative medical evidence to the contrary. As such, the medical evidence in this case is, at minimum, in equipoise regarding the issue of whether the Veteran's currently diagnosed focal sensory peripheral neuropathy to the left medial thigh is related to his service-connected disabilities. Service connection is warranted. The Board acknowledges that there are negative opinions of record; however, this evidence is determined to be no more probative than the aforementioned positive opinions. Of note, these opinions were prepared prior to the most recent evidence provided by J. K. and S. C. and therefore did not consider the assertions proffered. In light of the record and the governing legal authority, the Board finds that the evidence is, at the very least, in equipoise on the question of a nexus. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The benefit-of-the-doubt rule applies and the requirement of a nexus is thereby met. The Board considers the Veteran's nerve disability claim to have been fully granted through the above grant of entitlement to service connection for focal sensory peripheral neuropathy of the left medial thigh. Increase Rating HTN Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations should be applied, the higher evaluation will be assigned if that disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. § 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where a claimant appeals the initial rating assigned following an award of service connection, evidence contemporaneous with the claim for service connection and with the rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence "used to decide whether an [initial] rating on appeal was erroneous..." Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. Id. The Veteran has been assigned a noncompensable rating under Diagnostic Code 7101 for his service-connected hypertension for the period September 27, 2009, to October 26, 2010. Diagnostic Code 7101 provides the rating criteria for hypertensive vascular disease (hypertension and isolated systolic hypertension). Under that Diagnostic Code, a 10 percent evaluation is assigned for diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires constant medication for control. A 20 percent evaluation is assigned for diastolic pressure predominantly 110 or more, or; systolic pressure predominantly 200 or more. A 40 percent evaluation is assigned for diastolic pressure predominantly 120 or more. A 60 percent evaluation is assigned for diastolic pressure predominantly 130 or more. See 38 C.F.R. § 4.104, Diagnostic Code 7101 (2017). Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. For purposes of this section, the term hypertension means the diastolic blood pressure is predominantly 90mm. or greater; and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm. or greater with a diastolic blood pressure of less than 90mm. See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1) (2017). In every case where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31 (2017). As stated above, the Veteran seeks an initial compensable rating for HTN prior to October 27, 2010. Turning to the record, on August 2010 VA HTN examination the Veteran's blood pressure was 154/86 mmHg. Blood pressure measurements for establishing a diagnosis of HTN were noted as 150/98 mmHg, 150/92 mmHg, and 154/86 mmHg. Current medications were lisinopril, amlodipine, hydrochlorothiazide, and propranolol. The examiner noted that continuous medication was required to control the Veteran's HTN. The examiner also indicated that HTN affected the Veteran's usual daily activities as on occasion he had to "put tasks off on days he was not feeling well." In November 2010, the Veteran submitted a copy of his home blood pressure readings log dated from November 2009 to November 2010. Review of the log indicates the highest diastolic pressure reading was 168/110 on February 10, 2010 and his lowest was 113/64 on July 9, 2010. Correspondingly, his highest systolic reading was 182/101 on October 26, 2010 and his lowest was 113/64 on July 9, 2010. In a November 2010 statement, the Veteran's primary care provider C. B., M. D., confirmed that his blood pressure was uncontrolled even with four medications. Dr. B. also noted that his blood pressure ranged from "140's-160's/85-110." Also in November 2010, S. C., R. N. indicated that without his medication the Veteran would have uncontrolled HTN with diastolic pressure of 100 or more "the majority of the time." She also reported having personally recorded his blood pressure readings on October 18th, 21st, and 23rd in 2010. The highest systolic reading for these dates was 166/99 and the lowest was 151/97. His highest diastolic pressure was 167/104 and the lowest was 166/96. VA treatment medical records are limited, but on March 23, 2010 the Veteran had a blood pressure of 130/84. See Hickory CBOC Treatment Medical Records. Of note, the Veteran's home reading for March 23, 2010 was 160/92. At the March 2017 Board Hearing, the undersigned questioned the Veteran as to whether he had diastolic pressure predominantly 100 or more or systolic pressure predominantly 160 or more for the pertinent period on appeal. In response, he stated "I believe I would've been if I hadn't been on, already on medication [sic]. "But the period before 2010, I was already on medication." The undersigned requested clarification by asking whether the Veteran's primary contention was "but for the fact that [he was] on medication during this time period, [he] would've certainly met the predominantly 100 or higher diastolic and, or 160 or high[er] systolic [pressure]?" The Veteran responded in the affirmative. Following careful consideration of the record, the Board finds that entitlement to an initial compensable rating prior to October 27, 2010 is not warranted. Review of the entirety of the record does not suggest that the Veteran had a predominant diastolic pressure of at least 100 during the course of the appeal. Rather, as reflected by his primary care physician Dr. B., and his occasional care provider S. C., his results varied. In addition, review of the Veteran's submitted home blood pressure log indicates that the number of times his diastolic pressure rose to 100 or above equates to less than half of the pertinent period on appeal. Such results do not support a predominant diastolic blood pressure equivalent to that necessary for a 10 percent rating. Similarly, the Board notes that his predominant systolic blood pressure for the period on appeal was also not 160 or greater. In this regard, although the Veteran's home log indicates instances of systolic pressure over 160 these records do not present sufficient evidence of a predominate systolic pressure over 160. Instead they appear to be an outlier when viewing the collective record as a whole. In sum, the medical evidence of record does not establish that the Veteran's service-connected HTN warrants a compensable disability rating. Here, the record, clinical or otherwise, does not reflect that the Veteran had a predominate diastolic blood pressure of 100 or more or systolic blood pressure of 160 or more during the period on appeal. Additionally, the statements of his care providers do not reflect that he had a history of diastolic blood pressure 100 or more. Indeed, the Veteran's own hearing testimony indicates that his average blood pressure readings did not meet the criteria for an increased rating of 10 percent, as his medication precluded such results. Therefore, there is simply no evidence to show that the Veteran's diastolic blood pressure was predominantly 100 or higher or that his systolic blood pressure was predominantly 160 or higher. As such, a disability rating in excess of the current noncompensable rating for HTN cannot be granted during this period. Lastly, the Board has considered the Veteran's assertions that without continuous medication his HTN elevates to higher levels. See T pgs. 25-28. On this issue, the Board acknowledges the Court's holding that VA may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria. Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). However, the Court subsequently determined that for HTN, the plain language of Diagnostic Code 7101 contemplates the effects of medication and, thus, the Jones case is not applicable to cases involving hypertension. McCarroll v. McDonald, 28 Vet. App. 267, 271-73 (2016). That is, the rating criteria for HTN already take into account the ameliorative effects of medication. Id. There is also no indication in the medical evidence of record that the Veteran's HTN warranted other than the currently-assigned noncompensable disability rating throughout the appeal period. As such, assignment of staged ratings is not warranted. See Hart, supra. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). The Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim of entitlement to an initial compensable rating for HTN prior to October 27, 2010, that doctrine is not applicable. See 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017). ORDER The issues of entitlement to service connection for low HDL levels; chronic disorder of the gums; a bilateral eye disorder, to include glaucoma, and entitlement to an initial rating in excess of 10 percent for HTN from October 27, 2010, are dismissed. Entitlement to service connection for left lower extremity peripheral neuropathy is granted. Entitlement to an initial compensable disability rating for HTN prior to October 27, 2010, is denied. REMAND The Veteran seeks service connection for his right kidney tumors. He asserts that these tumors are the direct result of multiple instances of chemical exposure during service. In pertinent part, he asserts exposure to benzene, among other chemicals, while stationed in Cherry Point, North Carolina; Camp Lejeune, North Carolina; and Da Nang, Vietnam. As a result of his assertions, the RO obtained a VA medical opinion in November 2012 addressing whether his Camp Lejeune service could have caused his current disabilities. The examiner opined that the Veteran's right kidney angiomyolipomas were most probably not caused by his exposure to water at Camp Lejeune in 1968 to service. As rationale, the examiner noted that clinical medical literature was devoid of a correlation between the solvents found in the drinking water at Camp Lejeune and benign kidney tumors. The examiner also indicated that the Veteran had limited exposure to the water at Camp Lejeune, 19 days, during "a cooler time of year." The Board finds this opinion inadequate. Notably, the examiner's statements fail to address the multiple submissions provided by the Veteran which are suggestive that there is indeed a relationship between benzene exposure and the development of benign tumors. See November 2013 Correspondence. Furthermore, there appears to be no true discussion of the Veteran's assertions that he did not have a history of other predisposing factors, such as drinking, which could have caused his kidney disabilities. Id. Finally, the record currently does not have an opinion addressing the Veteran's continued assertions that he was exposed to benzene while stationed in Cherry Point, North Carolina, while working as an aircraft technician throughout service, and while serving in Vietnam. In light of these omissions, a new VA examination with opinion is required. Accordingly, the case is REMANDED for the following action: 1. Obtain a VA medical examination regarding the nature and etiology of the Veteran's right renal angiomyolipomas, from a qualified medical examiner. The claims file must be made available to the examiner for review in connection with the examination. An explanation for all opinions expressed must be provided. Following a review of the relevant evidence, to include service treatment records, post-service treatment records; a history obtained from the Veteran, the clinical evaluation, and any tests that are deemed necessary, the examiner should opine whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's kidney disabilities, specifically his right renal angiomyolipomas, began during or are causally related to service, to include as due to presumed exposure to Agent Orange/benzene. In rendering this determination the examiner must: (a) Address the numerous internet articles and treatise information that the Veteran has submitted in support of his claim that his angiomyolipomas were caused by his exposure to Agent Orange/benzene. Note, these submissions appear to indicate that benzene can cause the development of both malignant and benign tumors. In this regard, the Board found the previous November 2012 VA opinion inadequate as it did not address these submissions, but nevertheless opinioned that current medical literature does not indicate that such a correlation is possible. (b) Address the Veteran's contentions at the March 2017 Board Hearing and throughout the record regarding the cause of his condition. See October 2011, February 2013, November 2013, and December 2013 Correspondence; December 2013 and March 2014 Statements in Support of the Claim; and June 2014 VA Form 9 Adjoining Correspondence. Note, the Veteran contends that he was exposed to benzene while in Da Nang, Vietnam; Cherry Point, North Carolina; Camp Lejeune, North Carolina; and while generally working around jet fuel and gases while working with planes in-service. In the instant case, service in these locations is established by the Veteran's personnel records. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 2. Following completion of this development, review the expanded record and reconsider the remanded claim. If the claim remains denied, issue a supplemental statement of the case and afford the Veteran and his representative an opportunity to respond. Thereafter, return the case to the Board for appellate review if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs